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Gonzalez v. Freightways

September 23, 2010

JERAMIAS GONZALEZ AND SAYRA GONZALEZ-LOPEZ, H/W, PLAINTIFFS-APPELLANTS,
v.
EASTERN FREIGHTWAYS AND BLANCHARD STREET, LLC, DEFENDANTS, AND HMD LAWN SERVICE & PLOWING, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8999-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 5, 2010

Before Judges Cuff and C.L. Miniman.

Plaintiffs Jeramias Gonzalez and Sayra Gonzalez-Lopez*fn1 appeal from an August 28, 2009, summary judgment in favor of defendant HMD Lawn Service and Plowing (HMD) dismissing plaintiffs' complaint and all cross-claims against this defendant with prejudice. We now reverse and remand for further proceedings consistent with this opinion.

I.

Plaintiff was injured on February 5, 2007. At the time of the alleged injury, plaintiff was an employee of defendant Eastern Freightways (Eastern).*fn2 Plaintiff's duties included driving Eastern's tractor-trailers as well as training new employees. Eastern leased the property for its New Brunswick location from defendant Blanchard Street, LLC (Blanchard).*fn3

Eastern contracted with HMD for yard maintenance and snow and ice removal.

Plaintiff alleges that he experienced a slip-and-fall accident in Eastern's parking lot in the late morning of February 5, 2007. On a typical morning, plaintiff would arrive at work via car, turn his tractor on, and hook up his tractor to a trailer. On that particular morning, plaintiff knew which trailer he was to use because he had called the night before.

When plaintiff arrived, he used a code to access the front gate. He parked his car with the other cars, retrieved his personal items from his trunk, and walked over to his tractor. To get to his tractor, plaintiff walked a distance of about five car lengths. Plaintiff had some trouble walking because the ground was slippery, but there was no snow on the ground.

After making it to his tractor, plaintiff drove the tractor towards the trailer. Plaintiff had trouble driving as a result of the slippery ground, but he continued to do so. Plaintiff backed his tractor up to the trailer.

Soon after plaintiff descended from the tractor and began walking towards the trailer, he slipped and fell. Plaintiff fell backward and hit the ground with his left arm and back. After lying on the ground in pain for five minutes, plaintiff stood up without assistance.

Plaintiff later testified that he saw ice and that the ice had caused him to fall. Plaintiff saw this ice before his fall. The patch of ice covered a large area and looked "like a mirror." Plaintiff did not remember seeing salt, sand, or gravel on the ice.

Plaintiff gave extensive testimony as to the injuries he sustained in the fall, as well as to his surgical and therapeutic treatment. Because the issues of this appeal focus solely on the duties owed by HMD, we need not discuss the facts relevant to damages.

According to James Bellino, General Manager for Eastern, Eastern's parking lot is part asphalt, part gravel. In 2007, no one in the maintenance department performed snow or ice removal. Instead, Eastern had a written agreement with HMD for the removal of snow and ice.

Bellino was not aware of any written agreements other than the one provided in discovery. That agreement provides in pertinent part:

WE WOULD LIKE TO PRESENT OUR CONTRACT FOR SNOW PLOWING FOR THE 2006-2007 SEASON. THE FOLLOWING ARE OUR PRICES FOR THE ENTIRE PARKING LOT.

...

SALTING AVAILABLE BY YOUR REQUEST AT AN ADDITIONAL CHARGE OF: $250.00 PER TON.

Bellino testified that no one at Eastern was responsible for inspecting for snow or ice, or even ...


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